This article has been written by Subodh Asthana, a second-year student of Hidayatullah National Law University, Raipur. The has discussed some essential points and merits of Legislation as a source of law.
Legislation means the process of lawmaking. Legis means law and Latum mean “making”, and as a whole it means lawmaking. According to Austin, it means the making of law by a supreme or a sovereign authority which must be followed by people of every stratum of the society. Salmond defines Legislation as the process of lawmaking by a competent and able authority.
Legislation is the process of lawmaking where a competent authority is given the task of drafting and enacting the law in a state. It is also said to be a strict concept of lawmaking because there is only one body which is entrusted with the work of lawmaking and also there is no scope of any alteration as such because of codified and watertight laws which leave a very minuscule range of the amendment.
Definition of Legislation
According to Salmond: “Legislation is that source of law which comprises in the assertion of lawful standards by a competent specialist.”
According To Austin: “Legislation is the command of the sovereign or the superior authority which must be followed by the common masses backed by sanctions”.
According to Gray: “Legislation implies the formal expression of the administrative organs of the general public.”
According to Positivist School: “A run of the mill law is a rule and legislation is the typical source and form of lawmaking.” Most examples of this school don’t affirm that the courts additionally can figure law. They don’t concede the case of custom as a wellspring of law. Consequently, they view just legislation as the form of law.
According to Historical School: “The legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to give the better framework and increasingly viable the custom which is unexpectedly created by the general population.”
Historical School usually don’t perceive the legislation as a form of law.
Types of Legislation
Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted in the best interests of the citizens.
Some different types of legislation are as follows.
The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In this manner, some other authorities which are the organ of the state cannot control or check it. It is considered incomparable as well as lawfully powerful. An established piece of this rule can be found in Dicey’s book, ‘The Law of the Constitution‘.
There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent. Even though there are different constitutional amendments upon its capacity, it isn’t subject to any other administrative authorities inside the state. Therefore the sovereign jurisdiction of the state can’t be revoked, cancelled or constrained by some other authoritative organ of the state.
Subordinate legislation will be legislation by some other authority than the Supreme specialist in the state. It is made under the powers designated by the Supreme authority. Such legislation owes its reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and abrogated anytime by the power of the sovereign authority and therefore, it must offer an approach to sovereign legislation. Subordinate legislation is liable to parliamentary control. Five unique types of subordinate legislation can be distinguished. These are as follows.
The nations which are not autonomous, and are under the control of some other state have no Supreme capacity to make law. Such countries can be in different classes such as colonies, domains, secured or trust regions and so forth. The laws made by them are subject to the Supreme legislation of the state under whose control they are. Therefore it is subordinate legislation.
England has had numerous colonies and territories. The laws made by them for the self-government are subject to modification, nullification or supersession by the legislation of the British Parliament. As the colonies are free, accomplished freedom and practically all the British domains have an unlimited power for legislation, hence sooner rather than later, we might have this class of subordinate legislation no more in existence.
At the point when legislative powers are delegated by the designated official to an executive, it is called executive legislation. Even though the significant capacity of the official is to execute the laws and carry on the organisation, he/she is continuously dependent on some subordinate enactment powers. Today, for all intents and purposes of each law sanctioned by the lawmaking body contains assignment statements giving law-making powers by the official to the executive in order to enhance the statutory arrangements.
Powers delegated to the judicial system to make and implement their own laws to maintain transparency in the judicial system of the country. This will also ensure that there is no involvement of any other organ of the government in the governance of the judicial system of the state.
Municipal bodies are offered powers to make bye-laws concerning their neighbourhood matters. Bye-law made by a neighbourhood body works inside its individual area. In India, such municipal bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on. There is a move for allowing extensive powers to Panchayats. Along these lines, there is a plausibility of extension of this sort of subordinate enactment in our nation. Balwant Rai committee appointed by the Parliament gave some parliamentary reforms needed in the Panchayat system of the country. The recommendations were later on incorporated in the Constitution by 73rd Amendment.
At the point when the Supreme authority gives powers upon a gathering of people to administer on the issues depended to them as a gathering, the law made by the last is known as the autonomous law and the body is known as a self-ruling body. A railway is an independent body. It makes bye-laws for the guideline of its organisation, and so on. A college is likewise a self-governing body. Even some universities in India have been granted the status of autonomous bodies.
- Delegated(subordinate or subsidiary) Legislation alludes to those laws made by people or bodies to whom parliament has delegated law-making powers.
- Where Acts are made by Parliament, a Principal Act may cause arrangement for Subsidiary Legislation to be made and will to indicate who can make laws as such under that Act.
- Delegated Legislation can just exist in connection to an empowering or parent Act.
- Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that the arrangements of the Act will work effectively. It might be directed by Government Departments, Local Councils or Courts.
- Guidelines and Statutory Rules are the most widely recognised types of Delegated Legislation. They are made by the Executive or a Minister which apply to the overall public. By-laws, and once in a while Ordinances are made by a Local Government Authority which also applies to the general population who live around there. Principle and Parent Act regularly depict methodology to be followed in Courts if there is any flaw in a delegated law.
Advantages of Legislation as a Source of Law
Verifiably additionally the legislation has dependably been perceived as a significant wellspring of law as contrasted and different sources. There are two apparent explanations behind the legislation is viewed as a standout amongst the most significant sources of law. Right off the bat, it includes setting down of legitimate principles by the lawmaking bodies which the State perceives as law.
Besides, it has the power and authority of the State. It is hence said by Dias and Hughes that conscious law-production by a legitimate power, i.e. the State is called ‘legislation’ which gave that sovereign is correctly perceived as the supreme power by the courts. Relative Merit of Legislation over Precedent and customs have been discussed below.
Some main advantages of legislation are as follows.
- Abrogative Power—It can change or annul old law, which control isn’t controlled by different sources.
- Effectiveness—It separates the elements of making law and overseeing it between the Legislature and the legal executive.
- Declaration — it gives that principles of law will be known before they are authorised.
- Reliance on Accidental Legislation — Legislation is independent and emerges out of as the authoritative source of law it need not hold up until the original case of legislation.
- Unrivalled in Form — It is predominant in structure, brief, clear, effectively available and understandable as against case law, which is an increase of sense in a considerable amount of pointless issue.
Precedent and Legislation
- The legislation has its source in the process of law which is basically enacted and enforced by the State while the precedent has its origin in ancient and historic judicial pronouncements.
- Legislation has an authoritative force on courts by the assembly. However, precedents are made by the courts themselves.
- Legislation signifies formal declaration of law by the governing body though precedents are acknowledgement and use of new standards of law by courts in the administration of equity, justice and good conscience.
- Legislation is ordered before a case emerges. However, the precedent appears simply after the case has developed and taken for the choice of the court.
- Legislation is basically of an exhaustive structure while the extent of legal precedent is restricted to comparable cases as it were.
- Legislation is commonly and generally forthcoming while precedent is retrospective in nature.
- Legislation is announced or distributed before it is brought into power, on the other hand, precedent comes into power on the double, i.e. when the choice is articulated.
- Legislation is finished with the goal of the lawmaking process yet it isn’t so on account of the precedent. The precedent which incorporates ratio decidendi and obiter dicta are expected to settle a particular contest on the purpose of law once for all.
- It isn’t hard for people, in general, to realise the law instituted by lawmaking body yet the precedent dependent on the case law isn’t effectively known to the general population. Now and again, the attorneys who manage law are themselves oblivious about the current case-law. Therefore it makes a precedent of an ambiguous nature.
- Legislation includes law-production by deductive strategy while case-law is made by resorting to an inductive technique.
Legislation and Custom
- The presence of legislation is basically by law, while customary law is wholly accepted in a particular boundary.
- Legislation is enacted out of hypothetical standards. However, customary law becomes is adopted because of its very well and long presence in history.
- Legislation as a source is indeed a long lasting nature of law, as contrasted to the custom which is the most established type of law and is followed by a particular sect
- The legislation is a fundamental characteristic for a present-day society while the customary law was created in a crude social order.
- Legislation is finished, exact, written in the structure and effectively open. However, customary law is generally unwritten am non-scriptum and is hard to follow.
- Legislation results out of the deliberations while custom develops inside the general public in the ordinary course.
Demerits of Legislation
There is no source of law which is perfect and totally complete in its form and sense, some lacunas and loopholes could be easily found in every source of law which is as follows in the case of legislation.
- Unbending nature—Law in the legislation is inflexible though the law in the precedents is versatile and adaptable.
- In view of Hypothesis — Legislation, for the most part, continues on speculative certainties, by considering the existing environment and surrounding in which the established law is frequently observed to be blemished in its application to the mind-boggling issues emerging in genuine life though piece-scratches develop out of the commonsense exigencies and convenience.
- An excessive amount of Importance to the Wordings—Legislation appends a lot of significance to its wordings. Thus, if the articulation is faulty, the law in itself gets effectively turned. In the precedents, the wording matters close to nothing as there is a genuine introduction which performs separate checks on the applicability of precedent as a source of law. Same goes with the customary law as well.
Legislation is therefore regarded as the most important source of law in the prevalent times. Hence it is considered to be the codified form of law which is commanded by the sovereign to the common masses, and it becomes a predicament situation to regard legislation as the authoritative source of law.
Legislation is one of the foremost and most important source of law in today’s world. Most countries in today’s world regard legislation as an essential source of law and follow this system of lawmaking. Although some lacunae and loopholes are there which exists in the present form but then too the difficulties such faced are relatively less than that faced from the other sources of law viz. custom and precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.